Access to the courts in Sellman v Slater

Should anyone be able to access the court to vindicate their legal rights? Or should the court prevent access if there is only minimal harm or minimal financial gain at stake? That is a question addressed in Justice Palmer’s decision handed down this week in Sellman v Slater [2017] NZHC 2392. This case involves the now infamous Cameron Slater who runs the Whale Oil blog and is alleged in this proceeding to have made defamatory statements pleaded in 41 causes of action. The judgment is notable for several reasons, not least the following quotable quote:

If a reputation falls in a forest, but no one hears of it, it does not sound in defamation. [34]

The point of interest for my purposes, however, is the discussion on access to the courts. Justice Palmer agreed with the submissions that:

It is conceivable there may be some extreme circumstances in which legal proceedings place such a disproportionate burden on the litigants and the court system in terms of time and resources that they should not be allowed to proceed as an abuse of court process. [59]

He goes on to say that the right of access to the courts to vindicate legal rights “has a high constitutional value in New Zealand” and that “access to the courts is inherent in the rule of law” [60]. He emphasises that only in “the rarest of circumstances” should the courts override the rights of access and cites 1982 Court of Appeal authority that questioned whether Parliament could oust citizen’s recourse to the courts for the determination of their rights [61].

This is a very important statement of principle and a welcome one. I am concerned with discussion that emphasises access to the courts based on proportionality in terms of monetary value of claims relative to the cost of bringing those claims. As Justice Palmer notes, this is occurring more in England and Wales, but the potential for it to drift here is real. I am also concerned about some of the discussion around “dispute containment” (especially in the context of the proposed English online court), which sometimes sounds a bit like gatekeeping and patrolling access to the courts. Both proportionality and containment tend to reduce the importance of legal rights and disputes to economic measurements. They do not acknowledge that a claim that has seemingly small monetary value might be a significant proportion of that claimant’s net worth and so important to them, even if it seems small to someone accustomed to dealing in larger sums. The discussions also fail to acknowledge the non-economic value of making a legal claim, emphasising resolution and cost reduction at the expense of other goals. As Gillian Hadfield’s research on 9/11 compensation package offers found, the reason that people take a claim to court is much more complex that the cost-benefit analysis in monetary terms a lawyer might apply.[1]

Hadfield sought to explain why victims and families were very slow taking up the economically generous offer to settle 9/11 claims, offers which included a bar on any litigation. Hadfield found that litigants wanted to use litigation to unearth information, to seek accountability and an authoritative public judgment about wrongdoing, and they wanted to do something to promote change. She concluded that the responses of the 9/11 respondents:

throws into sharp relief a fundamental rift between the dominant way in which legal actors frame the goals of litigation and the way those who find themselves in a position of pursuing potential litigation in response to loss see the institution.

The protection of the right to access the courts – even in cases where it may seem to legal professionals to be disproportionate – is therefore very important. We do, of course, need to find ways to minimise the expense of taking a case to court but that does not mean we should block people from access. The right of access is of fundamental importance to the rule of law and the High Court’s affirmation of this is very welcome.

[1] The reference to the edited article is: Gillian Hadfield “Framing the Choice Between Cash and the Courthouse: Experiences With the 9/11 Victim Compensation Fund” (2008) 42(3) Law and Society Review 645.